A Season of Hope for Religious Freedom

By

Dominique Ludvigson

Dec. 13, 2012 6:48 p.m. ET

From the Heritage Foundation

Liberty University's legal complaint that the national health-care law violates its religious freedom appeared all but dead. But then the Supreme Court revived the hopes of the private Christian school: The justices directed an appeals court to reconsider the university's challenge.

Liberty has religious objections to the requirement under the Affordable Care Act (popularly known as Obamacare) that the Lynchburg, Va., university cover abortion drugs at no cost to employees.

That requirement is part of the "preventive services" mandate issued by the Department of Health and Human Services in implementing Obamacare. This HHS requirement of free coverage of abortion-inducing drugs, contraceptives and sterilization procedures applies to nearly all employers, regardless of religious or moral objection. It exempts only formal houses of worship.

As Liberty's case heads back to the lower court, other federal courts have agreed that the HHS rule may impose an impermissible burden on Americans who run their businesses consistent with deeply held religious principles. The courts directed the government to temporarily refrain from enforcing huge fines and penalties for non-compliance before their cases are fully heard.

These developments offer cause for hope and provide a valuable opportunity as Christmas approaches to remind Americans why we can't take our freedoms for granted.

One employer is Tyndale House, the Illinois-based publisher of Bibles and Christian books that directs a chunk of proceeds to charitable causes.The administration actually argues that the Bible publisher isn't religious enough to qualify for an exemption from the HHS mandate because it is engaged in commerce and operates for a profit.

Another is O'Brien Industrial Holdings, whose mission statement and website clearly reflect the owner's Catholic principles. Frank R. O'Brien argues that the requirement coerces him to violate his conscience or risk financial penalties that threaten his St. Louis-based company's very existence.

And on Dec. 5, a federal court allowed the Catholic Archdiocese of New York's case to move forward.Previously, the legal challenges of church organizations had been stymied by the administration's phantom promises of accommodation. In all, 110 plaintiffs have gone to court in 40 lawsuits across the country to challenge this anti-conscience rule.

Wait, didn't the Supreme Court already decide in June to uphold Obamacare as a valid exercise of Congress's taxing power?Yes, but the high court did not confront the critical question of whether it tramples on religious freedom. In fact, Chief Justice John Roberts' majority opinion acknowledged that penalties for non-compliance may be struck down if they violate "other requirements in the Constitution," such as the First Amendment guarantee of religious freedom.

Justice Ruth Bader Ginsburg's separate opinion made the point even more clearly: "A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly ... interfered with the free exercise of religion."

Religious institutions and individuals should not have to sue the government to preserve the freedom to define their own missions. But they're left with little choice in the brave new world unleashed by the national health-care law.

The HHS mandate breaks with our best traditions of recognizing the free exercise of religion as a public good and broadly accommodating religious practice and expression. It sees religion as "in the way" and interprets religious freedom as narrowly as possible - as freedom for worship and religious exercise within the walls of a church or only among its members.

The requirement also commandeers and marginalizes some of the very institutions of civil society that help preserve limited government.It's the symptom of a broader disease - the Obama administration's belief that government has unlimited power to curb freedom at will. Religious liberty is just the first casualty of that unchecked power.A limited government would strive to minimize its influence on the religious choices of individuals and organizations.

Respect for the contributions of people of faith does not - and cannot - require an endorsement of specific religious beliefs. But it does require that the state not disregard religious and moral views or practices in service to the state-imposed philosophy of the day.

A government with the power to reduce religious liberty to mere "freedom of worship," able to compel individuals and institutions to subsidize goods and services that violate their convictions, is a government that could do virtually anything. As a freedom-loving people, that should concern all of us.

As we wait for legal challenges to the HHS mandate to reach the Supreme Court for resolution, those cases offer the opportunity for what President Obama calls "teachable moments" about freedoms critical to the lifeblood of the nation.

Ms. Ludvigson is a research fellow in the Heritage Foundation's DeVos Center for Religion and Civil Society.

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